Our employee on a modified work schedule misses too much work. What do we do?

How many of you struggle to enforce attendance rules for employees with a disability or serious health condition on a modified work schedule?

I’ve got some tips from a recent appellate court decision involving a Transportation Security Officer (TSO) with fibromyalgia.

Initially, her supervisor allowed her to work a modified four-day workweek, which was later revoked. All the while, the plaintiff struggled with attendance. Wisely, her employer documented the attendance issues, which included frequent unscheduled absences and tardiness, and issued written warnings. Notwithstanding, the plaintiff’s attendance did not improve.

Additional requests for accommodations were denied due to operational needs and staffing constraints. Ultimately, the employer removed the plaintiff from federal service in August 2015 due to attendance issues.

Disabled but unqualified.

The plaintiff claimed that the defendant discriminated against her because of her disability. Although fibromyalgia may be a disability, the plaintiff failed to meet her burden of establishing that she could perform the essential functions of her job due to chronic absenteeism. Despite being granted a modified work schedule, her attendance issues persisted, undermining her claim that she could meet the job’s essential requirements. The court emphasized that attendance is an essential function of any job, and her inability to maintain regular attendance meant she could not perform her job’s essential functions, even with accommodations. The court concluded her termination was justified based on chronic absenteeism and failure to follow the defendant’s leave procedures.

Key Takeaways

1. Attendance as an Essential Function: Ensure job descriptions clearly state that regular attendance is an essential function. This is crucial in defending against claims where absenteeism is a significant issue.
2. Document Accommodation Efforts: Maintain thorough records of all accommodation requests and the employer’s responses. This documentation demonstrates that reasonable accommodations were considered and provided where feasible.
3. Document and Communicate Attendance Issues Too. Supervisors should keep detailed records of all instances of absenteeism and tardiness, including any warnings or disciplinary actions taken. Clear communication with the employee about attendance expectations and the consequences of failing to meet these expectations is also crucial to undermine claims of pretextual termination decisions.
4. Consistent Enforcement of Policies: Apply attendance and leave policies consistently across all employees. Inconsistent application can lead to discrimination or retaliation claims, even if the underlying reasons for termination are legitimate.

These practices help employers manage disability accommodations, address attendance issues, and avoid lawsuits.